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Application of the Toxics Release Inventory to Nanomaterials

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Application of the Toxics Release Inventory to Nanomaterials Project on Emerging Nanotechnologies FEBRUARY 2008 PROJECT ON EMERGING NANOTECHNOLOGIES RESEARCH BRIEF Application of the Toxics Release PEN BRIEF No. 2 Inventory to Nanomaterials by Linda K. Breggin and Read D. Porter Background This research brief examines whether the legal authorities that establish the Toxics Release Inventory (TRI) in the Emergency Planning and Community-Right- to-Know Act (EPCRA)1 could be applied to nanomaterials. Although several organizations have published analyses of whether specifi c environmental laws could be used to regulate nanomaterials,2 none of these reviews has examined EPCRA or TRI in any detail. Examination of the principal federal right-to-know law seems opportune for several reasons. First, the only law that specifi cally addresses environmental, health, and safety of nanomaterials, enacted in 2006 by the City of Berkeley, California, takes a “right-to-know” approach that requires facilities that manufacture or use “manufactured nanoparticles” to disclose both the known toxicology of those materials and the facility’s plan for material handling, monitoring, containment, disposal, inventory tracking, release prevention, and mitigation. The City’s reporting guidance document expands on the ordinance by requiring disclosure of inhalation, dermal, oral, geno-, and reproductive toxicity information, as expressed through published research.3 The City of Cambridge, Massachusetts is currently considering Project on Emerging Nanotechnologies the adoption of a similar ordinance.4 is supported by Second, several non-profi t groups have called for various forms of regulation of THE PEW CHARITABLE nanomaterials, including some types of disclosure. Most recently, a broad coalition TRUSTS of 40 environmental, consumers, labor; and other groups called for regulation and 2 PROJECT ON EMERGING NANOTECHNOLOGIES Nanotechnology—the ability to observe and engineer matter within the general size range of 1 to 100 nanometers—is creating a set of materials that have properties that differ in fundamental ways from those of larger forms of the same material, and that make them useful for a variety of applications. It is estimated that there are more than 500 nanotechnology consumer products, as well as increasing numbers of industrial products, already on the market. AUTHORS/ACKNOWLEDGMENTS Linda K. Breggin joined the Environmental Law Read D. Porter joined the Environmental Law Institute (ELI) in 1997 as a Senior Attorney. She is also Institute as a Staff Attorney in 2006. He also directs Director of Southeast Environmental Programs for the ELI’s Invasive Species Project, for which he oversees Institute and directs its Nanotechnology Initiative. Ms. numerous projects designed to improve invasive species Breggin previously served as an Associate Director in prevention, control, and management on federal and the White House Offi ce on Environmental Policy and state levels. His research and writing has focused on in- as a Special Assistant to the Assistant Administrator for vasive species and ocean governance in addition to nan- Enforcement at the U.S. Environmental Protection otechnology. Prior to joining ELI, Mr. Porter served as Agency. Prior to joining ELI, she was in private a law clerk to the Honorable Julia Smith Gibbons of the practice. Ms. Breggin has worked on a wide range of United States Court of Appeals for the Sixth Circuit. environmental law issues over the past 20 years. She He is a graduate of Harvard Law School, where he was is the author or co-author of numerous reports and the Editor in Chief of the Harvard Environmental Law articles, including a recent article in the Columbia Review, and received a B.A. from Amherst College. Journal of Environmental Law entitled “Governing Uncertainty: The Nanotechnology Environmental, The Environmental Law Institute makes law Health, and Safety Challenge” and an ELI report on a work for people, places, and the planet. With its non- dialogue convened in 2005 entitled Securing the Promise partisan, independent approach, ELI promotes solutions of Nanotechnology: Is U.S. Environmental Law Up to the to tough environmental problems. The Institute’s un- Job? Ms. Breggin is a graduate of the University of paralleled research and highly respected publications Chicago Law School. She formerly served as Co-Chair inform the public debate and build the institutions of the District of Columbia Bar Association’s Section needed to advance sustainable development. on Environment and Natural Resources and as a Vice Chair of the American Bar Association’s Section of Valuable research assistance was provided by ELI Intern Environment, Energy and Resources, Committee on James Partridge. The authors would like to thank Lynn Innovation, Management Systems and Trading. Bergeson,Natalie Chin, and John Pendergrass for their valuable comments and input. Any inaccuracies or omissions are solely the responsibility of the authors. RESEARCH BRIEF FEBRUARY 2008 3 disclosure, including labeling of products containing nanomaterials.5 Similarly, a coalition of organizations in the United Kingdom, led by the Royal Academy, have begun to develop a code of conduct for businesses involved in manufacturing and using nanomaterials.6 Another group in the United Kingdom, Corporate Watch, recently issued a report criticizing the European Union for lack of regulation and labeling of nanomaterials.7 Thus, there is stakeholder interest in adoption of right-to-know or disclosure-based regulation for nanomaterials. Third, recent hearings and proposed legislation in the United States (U.S.) Congress address amendments to TRI. Much of this legislative activity has been in response, in part, to recent, widely-criticized regulatory changes under TRI, which are discussed further below.8 In addition, bills are pending that would expand TRI to cover greenhouse gas emissions.9 Although currently proposed legislation does not address nanomaterials, a public dialogue about the benefi ts and costs of TRI is underway that could allow for at least tangential discussion of the program’s application to nanomaterials. Prior to examining TRI, however, it is important to recognize that several additional right-to-know or disclosure-related laws and initiatives also should be explored for purposes of determining their effectiveness as a means of addressing environmental, health, and safety (EHS) risks that could be associated with nanomaterials. This Research Brief examines TRI primarily because it is the principal federal right-to-know law and one of the only major federal environmental laws not yet analyzed for purposes of its application to nanomaterials. It is quite possible, however, that other mechanisms would be preferable to TRI as a vehicle for disclosures about nanomaterials. These additional disclosure or right-to-know laws and initiatives are outlined briefl y in Appendix 1 and include: • Emergency planning provisions of EPCRA; • Risk management plans required under Section 112 (r) of the Clean Air Act; • Facility-based disclosure initiatives, including the potential use of facility-based permits under the Clean Water Act and other environmental laws; • State environmental disclosure laws; • Local right-to-know laws; The objective [of • Labeling of products containing nanomaterials; and • Public and private voluntary initiatives. “this report] is to make a In summary, the purpose of examining TRI is not to suggest that it should be a primary vehicle for regulating nanomaterials or even that it is the preferable disclosure- preliminary determination based approach. Rather, the objective is to make a preliminary determination about about whether the TRI whether the TRI statutory authorities could be applied to nanomaterials and whether amendments to the law would be needed. statutory authorities Overview of EPCRA/TRI could be applied to EPCRA was enacted in 1986 to provide information to citizens about hazardous chemicals in their communities. In part, the statute was adopted in response to two nanomaterials....” 4 PROJECT ON EMERGING NANOTECHNOLOGIES particularly high profi le and deadly chemical spills at Union Carbide facilities in Bhopal, India and Kanawha Valley, West Virginia. These spills generated demands from workers, environmental groups, and community activists for information Armed with TRI data, about chemicals to which they could be exposed. A key aspect of EPCRA is the establishment of the TRI.10 Section 313 of the “communities have more power Act requires owners and operators of certain facilities to complete and submit to Environmental Protection Agency (EPA) “Form R,” which summarizes the release to hold companies accountable of certain toxic chemicals from a facility into the environment. Covered releases include any method by which a facility allows toxic chemicals to enter an environ- and make informed decisions mental medium (air, water, soil), such as accidental spills, transfers to off-site landfi lls about how toxic chemicals are or treatment facilities, discharges to municipal sewer systems, direct air emissions, underground injection, and surface water discharges. In addition, in 1990, Congress to be managed, EPA says of the enacted the Pollution Prevention Act, which amends EPCRA to require the re- porting of additional data on waste management and source reduction activities. inventory’s infl uence. EPCRA further requires EPA to establish and maintain a computer database that contains the TRI data collected and to make that database available to the public. —According to the ” In practice,
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